17 Me. 344 | Me. | 1840
The opinion of the Court was drawn up ty
The plaintiff received a cow from the defendant, for which she was to pay, by the fourth of April following, sixteen dollars, or to return the cow and to pay four dollars for her use.. The question is, whether the property in the cow passed to the plaintiff, or whether it remained in the defendant, the plaintiff being merely bailee.
Sir William Jones, in his treatise on bailments, 143, says, “there ih a distinction between an obligation to restore the specific things, and a power or necessity of returning others equal in .value.. In the first case, it is a regular bailment; in the second, it becomes a debt.” Story on Bailments, c. 6, <§> 439, says, “ the distinction between the obligation to restore the specific things,' and a power of returning other things equal in value, holds in cases of hiring,' as well as in cases of deposits and gratuitous loans. In the former case, that is, the obligation to restore the specific thing, it is a regular bailment; in the latter, viz. where there is a power of returning other-' things equal in value, it becomes a debt.”
This doctrine is recognized in Hurd v. West, 7 Cowen, 752, and is further illustrated' in a note to that case. The cases to which this principle is usually applied are, where the article received is to'be'returned in kind;, or in the. alternative, either specifically or by an article of the* same kind, either in the same condition1 or in- a manufactured state.- In all such cases, the property passes to him, who would otherwise be merely a bailee. Seymour v. Brown, 19 Johns. 47, may seem in its application to be an exception to--this principle; but Chancellor Kent says, that this decision was'not in- conformity to the true' and settled doctrine. 2 Kent, 589. Whether the alternative is, to return specifically or in kind, or specifically or to pay a certain sum, the principle is the-same. The property in the thing delivered passes, and the remedy of the former owner rests in contract. It is the option conceded to the party receiving, which produces this-effect. He may do-what he will with the article received. If he pays, he fulfils his-contract. If he neither pays-nor returns, he-is liable to an action.-
.New trial granted.